The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

The Bill of Rights 1688 was enacted after the "Glorious Revolution" which culminated in the departure of James II (VII of Scotland). Much of this Bill of Rights was concerned with (a) the rights of Parliament versus the rights of the Crown and (b) addressing certain problems (e.g. relating to taxation). Thus, as one example, the Crown could no longer dispense with laws without the consent of Parliament

"That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall."

Lawyers could, no doubt, have a field day on the interpretation of this article alone. Certainly, whatever the position prior to the Bill of Rights, the King could no longer suspend a law without the consent of Parliament. For the background to this Article see - Parliament "The Glorious Revolution"; Case of Godden v Hales 1686; Case of the Seven Bishops 1688.

However, some of the provisions gave individuals some vaguely phrased rights - e.g. the statements that "excessive bail" should not be required nor "cruell and unusuall punishments inflicted." (See here for explanation of "cruel and unusual punishment" in the context of the 8th Amendment to the Constitution of the USA).

However one looks at this document - time-honoured as it is with history - it is not a suitable modern statement defining the rights of either the Crown, Parliament or the individual. It should be repealed and its essential provisions clarified and built into a modern formal enactment. If the work of the Commission on a Bill of Rights comes to fruition, there could be an opportunity to do this.

Rights and their protection in some Commonwealth jurisdictions:

:
A number of other Commonwealth jurisdictions already have enactments dealing with the rights and responsibilities. In 1982, the UK Parliament enacted the Canada Act which provided for a Canadian Charter of Rights and Freedoms. The Charter has become part of the Canadian Constitution. For breaches of the Charter, the Canadian courts are empowered to give any remedy considered to be appropriate and just in the circumstances. The Canada Act 1982 also stated:

No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

Wednesday, 28 September 2011

Life or death decisions involving people in so-called "vegetative states" have exercised the courts for some time, particularly since the decision of the House of Lords in the case of Hillsborough victim Anthony Bland - Airedale NHS Trust v Bland [1993] AC789. The case of W v M, S and a NHS Trust [2011] EWHC 2443 (Fam) 28th September 2011 concerned a lady, referred to as M, who is in a "minimally conscious state" which differs significantly from "vegetative state." A patient in a minimally conscious state is above the vegetative state and is aware to some extent of herself and her environment but does not have full consciousness. In May 2011, Baker J permitted an open hearing in the case though certain restrictions were imposed the media - see May judgment.

Baker J's judgment in M's case is a tour de force extending to 261 paragraphs including a masterful analysis of the law (paras 57-103). Essentially, M's family wished medical staff to discontinue offering M life sustaining treatment including artificial nutrition and hydration (ANH). Baker J concluded that the factor carrying substantial weight in this case was the preservation of life (para 7)

Although not an absolute rule, the law regards the preservation of life as a fundamental principle. As another judge has said: "there is a very strong presumption in favour of taking all steps which will prolong life and, save in exceptional circumstances, or where the person is dying, the best interests of the patient will normally require such steps to be taken".

Tuesday, 27 September 2011

This post takes a look at the two basic doctrines of English land law - estates and tenure. Estates remain of fundamental importance. Tenure continues to exist but is much reduced in importance though, occasionally, it can have impact. Although much title to land is now registered at the Land Registry, the law continues to be built upon its historic foundations.

Feudal land holding:

William I ("The Conqueror") regarded the whole of England as his by Conquest. He wished to know how much land was held by each landowner, what livestock they had and how much it was worth. Consequently, the Domesday Survey was carried out. The Commissioners visited most of what is now England together with parts of Wales. The Domesday Book refers to some 13,418, mostly small, places. The entries tell us the County and Hundred in which each place was located. See Domesday Map - a website into which you can put your postcode and discover what, if anything, Domesday Book had to say about your locality.

"Ownership" of land was a sign of wealth and power and, in this regard, some things may not have entirely changed to this day. To reward his followers and those of the English who submitted to him, he granted and confirmed certain lands to be held of him as overlord. These landholders became the King's principal tenants - Tenants-in-Chief or Tenants-in-capite. There were around 1500 tenants-in-chief in 1086 - the time of the Domesday Book. Such grants of land were not unconditional. Thus, the tenant would have to remain loyal to the King and might have had to provide services such as providing a number of "knights" for the King's military escapades. The medieval Kings entered into many such campaigns.

Friday, 23 September 2011

The first tranche of appeals in relation to the August disorder cases are to be heard by the Court of Appeal next week - BBC 21st September. In relation to these events, Law and Lawyers looked at bail and sentencing on 20th August - "The recent disorder: bail and sentencing." It will be interesting to see whether the Court of Appeal basically upholds the sentencing guidance developed in the Crown Court during the immediate aftermath of the disorder.

Meanwhile, the Police are continuing their investigations with a view to further prosecutions and a number of media organisations have passed on footage to the Police. It appears that production orders under the Police and Criminal Evidence Act 1984 s.9 have been obtained in some instances - see The Guardian 22nd September.

Bail

The Law Society Gazette 22nd September asks whether the Police are abusing bail rules - "Police 'abusing' bail rules." There is considerable concern that many people are being kept on bail for an inordinate amount of time and the Law Society is gathering evidence of cases where pre-charge bail has exceeded 6 months in duration. Bail can be accompanied by onerous bail conditions. This review follows the Police (Detention and Bail) Act 2011 which was hurriedly passed in the aftermath of the Hookway case - Law and Lawyers - Police (Detention and Bail) Bill - July 2011.

It is surprising how, sometimes, people think that they can look after themselves in the Police Station. For example, The Guardian reported on 20th September that Stepping Hill nurse Rebecca Leighton "initially refused to have a solicitor present during questioning as she felt she had nothing to hide" - see "Stepping Hill nurse criticises media over arrest ordeal."

Thursday, 22 September 2011

The Fixed Term Parliaments Act 2011 has arrived. The date of the next general election will be 7th May 2015. An earlier General Election cannot be called other than by application of section 2 (i.e. either the House of Commons votes to hold an election or the government loses a motion of confidence which is not reversed within 14 days). The ancient right of the Crown to dissolve Parliament has been abolished (see section 3) since a dissolution can now only be achieved once section 2 is followed. However, a power to prorogue Parliament remains - (section 6). Under section 7, a committee will examine the workings of the Act in 2020. The latter appears to be a compromise arrived at between the two Houses following an amendment in the House of Lords which would have applied the fixed term only to the present Parliament. One fears that this Act may have removed an important safety valve from the constitution in that it has been made more difficult to achieve the removal of a government no matter how unpopular it is proving to be or how necessary it may be to set up a new government. Of course, a powerful political weapon may have been taken away from the Prime Minister who could, under previous arrangements, have announced an election at a time of his political choosing.

It is also worth noting that the 2015 general election will be held with a smaller number of revised constituencies. This follows a Boundary review though the outcome of the review remains to be accepted by Parliament - see Boundary Commission. A further issue is that of Voter Registration which the government proposes to change from household registration to individual registrations - The Guardian 15th September 2011. In addition, a Commission has been appointed to

Wednesday, 21 September 2011

At least for now, the Metropolitan Police has called off its application for The Guardian to disclose journalistic sources - see the Met. Police News Statement of 20th September. As discussed in the previous post (here), the application was to be based on the Police and Criminal Evidence Act 1984 s.9. In a further development, the Met. has been called to explain its actions to the House of Commons Home Affairs Committee - see The Guardian 21st September. The Guardian's revelations about phone-hacking are a good example of investigative journalism bringing iniquity to the attention of the public. The protection offered by law to journalistic sources is important - see Law and Lawyers post. However, there is also an important point of principle relating to the confidentiality of information in the possession of the Police. The law, rightly, also protects that information from unauthorised disclosure and prosecutions under the Official Secrets Acts are a possibility. At times, these principles come into collision. However, at least for now, the dogs of war remain in their kennels.

Dale Farm, Oak Lane, Billericay - a serious issue

The stand-off between Basildon Council and "travellers" ensconced at Dale Farm almost came to a head on Monday 19th September but, after a further High Court hearing, the bailiffs were stood down for the time being. What of the actual decisions in the courts? Three years ago, the matter was considered by Collins J in McCarthy and others v Basildon District Council [2008] EWHC 987 (Admin). The Equality and Human Rights Commission intervened in the case. Collins J, who was presented with 23 lever arch files of material, gave a very detailed history of the situation and held that enforcement could not proceed immediately. He concluded by saying:

It has now been indicated that the Police and Criminal Evidence Act 1984 (PACE) section 9 may be invoked. This section is in Part II of PACE which is headed "Powers of Entry, Search and Seizure." Part II contains sections 8 to 23.

Section 8 is a power granted to Justices of the Peace (JP) to authorise a constable to enter and search premises. The authority may only be granted if the JP is satisfied that there are reasonable grounds to believe that a number of conditions apply including reasonable grounds to believe that there is material on premises which is likely to be of substantial value to the investigation of an indictable offence. However, this power may not be used to search for items subject to legal privilege or "excluded material" or "special procedure material." For those three categories, Parliament considered it necessary to have the authority of a Judge as opposed to a JP.

Sunday, 18 September 2011

The first Official Secrets Act was enacted in 1889. This was replaced by the Official Secrets Act 1911. The background to this is explained very well on the BBC Radio programme "Secret Britain" (43 minutes) - "One Hundred Years of Secrecy." The programme traces how the 1911 Act was planned by Ministers for quite some time but was only introduced into Parliament when an opportunity arose to make it more acceptable to the public. That came when Germany sent a gunboat to Agadir, Morocco in July 1911 on the pretext of protecting a German Colony. The 1911 Act went through Parliament in one day and there was minimal debate. The major problem with the Act was the exceptionally extensive section 2 which, according to one estimate, could produce over 2000 separate charges:

Nine years ago, in March 2002, Amanda "Milly" Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a "whole life" tariff. When Milly went missing, journalists of the News of the World newspaper "hacked" into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story. The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking. There is a suggestion that the Official Secrets Act 1989 may have been breached. The Guardian plans to resist this "extraordinary demand to the utmost" - see The Guardian 17th September - "Hacking: Met use Official Secrets Act to demand Guardian reveals sources."

Clearly, the media have, of necessity, to use "sources" of information and such information is usually given only on the basis that the journalist will not reveal the source. If the authorities were able to readily demand that sources be revealed then it is likely that sources of information would dry up. That could lead to the end of investigative journalism with the result that a great deal of iniquity would remain hidden from the public eye. The European Court of Human Rights clearly recognised this in the case of Goodwin v United Kingdom (1996) 22 EHRR 123. In para. 39 the Court stated:

"Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified by an overriding requirement in the public interest."

Thus, in these cases, Article 10 (Freedom of Expression) is heavily engaged and

The Sentencing Council has issued new consultations on the "totality principle", offences taken into considerations and Allocation of cases (i.e. the decision as to the court where the case will be tried). Responses to the consultations will be received by the Council up to 8th December.

Sunday 15th September 1940 is a major day in British history but, over the 71 intervening years, it has generally passed with minimal comment. This was the decisive day which marked the culmination of the Battle of Britain. The battle was fought mainly over the skies of south-east England. Young pilots of many nations were locked in mortal combat in a desperate fight to maintain supremacy over Britain's air space. Supporting the pilots was the structure of detection, command and control developed by Fighter Command's leader - Air Chief Marshal Sir Hugh Dowding (1882-1970). It always seems a matter of regret that he was not honoured by promotion to Marshal of the Royal Air Force - the highest rank in the RAF. It is probably impossible

In March, the government announced the setting up of a Commission on a Bill of Rights. In advance of the UK assuming the chairmanship of the Council of Europe's Committee of Ministers, the Commission has published interim advice to government on the reform of the European Court of Human Rights (the court). The Chair of the Commission has also published a letter to Ministers on reform of the court.

The Interim advice recognises that the court is swamped with some 150,000 applications and that a more rigorous process may be required to ensure that the court only deals with serious questions affecting the interpretation or application of the Convention and serious issues of general importance. The key question is - just what is serious enough to merit the court's attention? For example, would votes for prisoners be considered to be worthy of the court's attention? Writing in The Times 12th September, Ken Macdonald QC also argues that a sensible limitation on the court's powers is now urgent. Litigation at Strasbourg should be as exceptional as it was always intended to be. "The threshold to bring a case must be very high."

The Commission is also critical of the ability of the court to award "just satisfaction" by way of compensation to individuals affected by breach of convention rights. Doubt is expressed as to whether this is a proper task for an "international court of last resort."

A further recommendation seeks to establish agreement on "appropriate objective and merit-based principles and rules, and adequate resources, for the selection of judicial candidates at the national level, and for the appointment process at the European level." Behind this recommendation appears to be a view that some of the judges are not up to the mark. The court must

Friday, 9 September 2011

With uncanny timing, the Baha Mousa Inquiry has just issued its report. Baha Mousa was an Iraqi civilian who died of injuries received whilst he was held in the custody of the British Army. The Inquiry report is highly critical of those involved and refers to "appalling and cowardly violence." Telegraph 8th September. In a thought-provoking article in The Guardian 9th September, Clive Baldwin (Senior Legal Adviser to Human Rights Watch) states:

"This government has two options in responding to the recommendations of this inquiry. It can try to dismiss it as an aberrant case, the responsibility of just one corporal. Then it will face years of inquiries and hearings into case after case. Or it can address the systemic problems the previous Labour government refused to acknowledge – problems that require fundamental reform of military detention and policing, and ensure that those responsible for these crimes, including those in position of authority, are finally held accountable."

The Baha Mousa report condemns the MoD for lacking a doctrine on interrogation and the Unit commander committed a very serious breach for failing to report treatment of detainees - see post by Rosalind English on the UK Human Rights Blog - "Baha Mousa Public Inquiry finds "Corporate failure" by MoD." Of course, many of the politicians involved at the time have since "moved on" and little is likely to happen to them! Prosecution of some of the military personnel is a possibility. The atmosphere in which soldiers operate is set by politicians as well as by their military commanders.

The pathway to UK involvement in the Iraq War, began with the events in the USA on 11th September 2001 ("9/11" as it has come to be known). American Airlines Flight 11 was hijacked and deliberately flown into the North Tower of the World Trade Centre, New York. Three other flights were also hijacked. United Airlines Flight 175 was flown into the South Tower. American Airlines Flight 77 was crashed into the Pentagon (Arlington) and United Airlines Flight 93 crashed at Shanksville, Pennsylvania when passengers turned on the hijackers. The blame for all of this was placed, by the US Government, on the terrorist network Al Qaeda.

The "War on Terror" was proclaimed by President G.W.Bush. Subsequently, Britain became mired in the Iraq War, the legality of which has been fiercely argued. The legality question turned on the absence of a specific United Nations Security Council Resolution authorising the use of "all necessary means" to deal with the question of Saddam Hussein and the suspicion that he had or was developing "weapons of mass destruction." The Attorney-General of the day, Lord Goldsmith QC, controversially

Tuesday, 6 September 2011

In a Written Ministerial Statement of 6th September the Lord Chancellor said he would legislate as soon as parliamentary time allows to remove the legal restrictions on filming in court.

The Lord Chief Justice made the following comment:

"I am committed to the principle of open justice. The benefits that may come from reporting more cases on television, and indeed radio, in demystifying the judicial process and showing the rationale behind the complex decisions that judges have to make, have to be weighted against the potential effects on the trial process and in victims and witnesses in particular. I am aware of the Government's intentions in relation to introducing broadcasting from court and will work with them to ensure that any changes to the current position safeguard all parties in a case and will not affect the administration of justice."

Also, according to the Ministerial Statement, certain additional "justice data" will be published. Initially, the plan is that judgements in the Court of Appeal will be broadcast and, later, the use of TV will be expanded to the Crown Court. The possibility of showing sentencing was mentioned by David Cameron on 5th September - before the announcement from the Ministry of Justice - see Guardian 5th September This gave the appearance, rightly or wrongly, of the Ministry of Justice playing "catch-up" to the Prime Minister.

There will be further consultation and, according to Kenneth Clarke, offenders will not be given "opportunities for theatrical public display." The reference to "offenders" in the Ministerial Statement is interesting since it suggests that extension of TV to the Crown Court will be, at least initially, for sentencing hearings only and, even then, it would probably be selected cases. Obviously, more details remain to emerge.

There have been a number of instances where offenders were sentenced and left the court behaving in a way which could only have added insult to injury for either victims or their relatives. A very notable instance of this occurred after Irwin J sentenced some of those involved in the killing of Rhys Jones - see Guardian 16th December 2008

Some of the potential problems are looked at by David Banks in "Televised sentencing: a screen test for open justice" - The Guardian 6th September. Of course, as the Ministerial statement makes clear, the extension of television below Court of Appeal level will be developed in consultation with the judiciary.

Live streaming of most hearings in the Supreme Court of the United Kingdom commenced in May 2011 and appears to have been highly successful.

On Friday 2nd September, the Crown Prosecution Service (CPS) announced that criminal charges against Rebecca Leighton have been discontinued - see CPS announcement. Miss Leighton had been arrested in connection with suspicious deaths at Stepping Hill Hospital, Stockport. She was employed as a nurse at the hospital.

Police powers of arrest without warrant are set out in the Police and Criminal Evidence Act 1984 section 24. It will be noted that many of the arrest powers are expressed to be on the basis of "reasonable grounds to suspect" guilt. Certain "arrest conditions" also apply - see s.24(5).

On 22nd July 2011 she was charged: three charges of criminal damage with intent to endanger life; three charges of criminal damage being reckless as to whether life would be endangered and one charge of theft (of medication belonging to the hospital). On 23rd July the Magistrates duly "sent" her for trial at the Crown Court as they are now obliged to do under section 51 of the Crime and Disorder Act 1998 (which ended "committal proceedings" for offences triable only in the Crown Court).

A person who without lawful excuse destroys or damages any property, whether belonging to himself or another - (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

According to the CPS, the reason for discontinuance of the criminal damage charges is that Miss Leighton was charged on the basis of "reasonable suspicion" but the on-going inquiries had not so far provided a "stronger case which would meet the test that there is sufficient evidence for a realistic prospect of conviction."

In relation to the theft charge, the CPS stated that- "While there is sufficient evidence for a realistic prospect of conviction on this charge, we have decided it is not in the public interest to proceed as Rebecca Leighton would be likely to receive a nominal penalty given the time she has already spent in custody."

She spent 45 days in custody.

It is quite remarkable that a person can be charged with such serious offences on the basis of "reasonable suspicion." Is there legal authority for this?

Friday, 2 September 2011

The disorder of early August and the aftermath of "swift justice" has tended to dominate the news over the last few weeks. It is time to see what else is or might be sneaking under the radar.

Ministry of Justice

The Ministry of Justice has released statistical information - (please keep awake !) - relating to knife offences and how offenders are dealt with. The statistics are for Quarter 2 of 2011 compared to Q2 of 2010. We are informed that in Q2 of 2011, there were 5190 "disposals" for knife-related offences which is down 3% on Q2 of 2010. Further, in Q2 2011, 23% were cautioned, 31% received community sentences, 11% received suspended sentence orders and 20% immediate custody. I could be missing something but some 15% of cases are therefore unaccounted for? It is somewhat surprising that sentencing for this offence is still tending to be averse to custody despite the views of the Court of Appeal in R v Povey and others [2008] EWCA Crim 1261. The high cautioning rate is also to be noted.

About Me

There are no aspects of modern life untouched by law. My main interests are criminal law, constitutional law, human rights, family law, European Union law and some aspects of international law.
In law, the word "obiter", refers to remarks which are "by the way." My own comments are also "by the way" - I write about events which happen to interest me. I do not seek to dictate or even to persuade: merely to comment and inform and this blog must never be used as a substitute for professional legal advice.
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